Labor & Employment Digest: August 2014

This year has already provided the legal world with a number of labor and employment developments, and there has been no shortage of headlines since our last issue. In June the Supreme Court issued its decision on the National Labor Relations Board v. Noel Canning (which you can read about below), and the Equal Employment Opportunity Commission recently announced new guidelines that protect pregnant workers from discrimination in the workplace. Any way you slice it, labor law is as dynamic as ever. Here we bring you the voices of legal professionals in the space, to get an idea of how news like this will impact the law of the workplace.

BYOD security risks

“[The] Bring Your Own Device (BYOD) movement is in full swing and expected to grow to 108 million devices in use by 2016, according to a Cisco survey. U.S. companies, however, must weigh the significant cost benefit against the potential security risks. Accidental disclosure of information may result in loss of trade secrets and business information. Companies should have comprehensive written BYOD policies and train employees on those policies regularly. Policies should address departing employees’ devices as well. Device settings are key to prevent automatic use of unsecured wireless networks and to separate personal and business spaces.”

“Historically, employers were only liable for hostile work environments created by their employees, typically supervisors, but certainly persons under their control. Some courts, however, are now signaling that employers can no longer ‘look away’ and ignore situations in which third parties, including customers and vendors, create hostile work environments for employees. Last month, the 4th Circuit Court of Appeals adopted such a theory of liability. It is expected that other, less conservative, circuit courts may follow suit. In the wake of this developing trend, in-house counsel must now consider, investigate and address hostile work environments that are created by those who the employer may not necessarily control in order to avoid potential liability.”

—Thom Dillon, partner (Richmond), Hirscher Fleischer, PC

Noel Canning implications broader than the NLRB

“In the Noel Canning decision, although unanimous in judgment holding that President Obama exceeded his authority, the Court split 5-4 on more far reaching issues of whether the President can fill vacancies on a recess basis if those vacancies arise while the Senate is in session and whether the recess appointment power applies only to intersession recesses. The D.C. Circuit had more severely limited presidential power. Four justices who are generally viewed as conservative—Roberts, Scalia, Thomas and Alito—would have held that Presidential authority is more limited. Given the conservatives are frequently thought of as favoring a strong executive, this decision, along with others in recent years that reined in attempts by the Obama administration to expand Presidential power, could well cause scholars to go back and reassess their views of what is left and what is right.”

—Scott J. Witlin, partner (Los Angeles), Barnes & Thornburg, LLP

ADAAA protects temporary impairments

“Employers should be mindful that temporary impairments may now be a disability protected by the Americans with Disabilities Act Amendments Act (ADAAA). The 4th Circuit Court of Appeals recently applied the ADAAA's expanded definition of ‘disability’ to cover temporary impairments. ‘Nothing about the ADAAA or its regulations suggests a distinction between impairments caused by temporary injuries and impairments caused by permanent conditions,’ the court said. ‘Because [the plaintiff] alleges a severe injury that prevented him from walking for at least seven months, he has stated a claim that this impairment ‘substantially limited’ his ability to walk.’”

—Bryance Metheny, partner (Birmingham), Burr & Forman LLP

Proper tone in performance management: Be an Andy, not a Barney

“To Andy Griffith Show aficionados, Andy was a true leader. Barney? Not so much. Barney did not recognize that his job was not to serve the rules but to serve the policies the rules were designed to promote. As professionals in the HR world, the lessons are apparent. Our actions should not be to ‘catch’ people. Rather, our actions should serve the underlying policies of the rules. Sometimes that may mean strict enforcement, but sometimes it may mean a more relaxed approach. When to invoke these approaches requires sound judgment; it means striving to be more like Andy and less like Barney.”